Yet, Senator Ellis won’t push for a moratorium on executions. That does not make sense. If the Texas Legislature had enacted a moratorium in 2001 or 2003 (as we asked them to), it is highly likely that Todd Willingham would not have been executed in 2004 and he would have had more time to prove his innocence.

More from the Texas Monthly roundtable with Art Acevedo chief of the Austin Police Department since 2007; Rodney Ellis who was elected to the state Senate in 1990; Anthony Graves who was wrongfully convicted in 1992 and released from jail in 2010; Barbara Hervey a judge on the Court of Criminal Appeals and the chair of the court’s fourteen-member Texas Criminal Justice Integrity Unit. She lives in San Antonio; Kelly Siegler a special prosecutor; Craig Watkins the DA of Dallas County and a former defense attorney and Jake Silverstein, editor of TEXAS MONTHLY.

Silverstein: I want to talk about capital punishment. District Attorney Watkins, it’s something that you are morally opposed to, but in your capacity as district attorney in Dallas County, it’s something you’ve had to seek in some cases. Are you going to push for there to be a moratorium on the death penalty?

Watkins: I don’t think from my little seat as DA in Dallas County, which is one of 254 counties, that I have a voice to say there should be a moratorium. I can tell you how we do it in Dallas. We have a death penalty review team that looks at everything before we make a determination. It’s not just me making the decision. We have people with different views, and it’s majority rule. When we pursue it, guilt or innocence is not the issue. It’s pretty much, a guy’s confessed.

Ellis: I’ve presided over three executions. On the first day I was acting governor, as president pro tem of the Senate, an execution had been scheduled. I read the file. They had changed the pleadings to make the case to me: “Senator Ellis, you’ve been a civil rights leader; the death penalty has a disproportionate impact on people of color.” It was a direct appeal to me, and I remember thinking that when I took the oath to be president pro tem of the Senate, I swore to enforce the laws of the state of Texas. Not just the ones I like. So I read the file, I got on the line, and I said the state would proceed. But I do think there’s a distinct possibility the state of Texas has executed an innocent person.

Watkins: But you’ve got to get away from the morality of it, because people have different morals. It’s got to be logistics. Do we have things in place to make sure we don’t get it wrong? That’s a legitimate question.

Siegler: Yes—yes, we do. Checks and balances are in place. It’s the human beings involved that are the problem. You know, it’s another discussion if the people of Texas don’t want the death penalty. If they don’t, fine. But right now, that’s the law.

Ellis: But obviously all of us at this table have the ability to influence the law.

Siegler: Not that law.

Ellis: No, we do. If prosecutors were to say, “Hey, there are enough questions out here, there’s human error, we all make mistakes.”

Graves: Come on! To me, it’s an insult that you almost killed me and you’re still not even talking about a moratorium to find out what went wrong. You ask my mother about that. Ask my mom.

Ellis: I would say this: as a politician, as a policy maker, I wouldn’t put myself in a position where I would minimize my ability to enact meaningful reforms just to try to pass a moratorium bill. Whenever I carry these reforms, my colleagues come over to me and say, “You’re just against the death penalty. That’s your problem.” And I can look them in the eye and say, “I’ve presided over three executions. By what right do you say to me that I’m against the death penalty? I’ve done it. I’ll go to my maker. I did it. I could’ve given the thirty-day reprieve, but I didn’t.” I just don’t want the debate. I don’t want to minimize anybody’s ability to pass meaningful reforms. In a very conservative state, we’ve made some pretty significant advances.

Siegler: So you’re saying you don’t want to waste your time with a moratorium.

Ellis: Yeah, I don’t want to minimize my ability to pass other stuff.

Graves: I’ve experienced it! And I’m listening to the politics of it. And I’m like, we’re not getting to the real issue. We’re skirting around the real issue. We’re sitting up here discussing the narratives; we’re not discussing the issue.

Ellis: I think exonerations and the reforms that we have put in place over the years collectively make it more difficult to get an execution. When I put a spotlight on imperfections in the system, it’s harder for a prosecutor to get an execution. I hope these reforms that I’ve advocated—some of which we have passed—I hope they’ve made it more difficult. Because I’m convinced somebody’s going to look back at us in 25 years and ask, “What the hell were they doing?” Most of [the wrongly convicted] are poor, most of them are black.

Graves: And mentally retarded, losing their minds.

Watkins: Let me ask you this [to Graves]: When I was campaigning for DA, I ran somewhat on the issue of innocence. So when I got elected, I had to prove the thesis. So now here you are, you’ve been exonerated. And you were on death row, and you have a voice—you’re in a position where people will listen to what you say. And you’re saying that we should get away from capital punishment in Texas because we could make a mistake? Prove it.

Hall: How can you prove somebody innocent?

Graves: Here’s the proof. You tried to kill me twice.

Watkins: Yeah, but you’re one.

Graves: But one is one too many, ’cause my mother would have never gotten me back had you killed me. I understand exactly what you’re saying. You’re being real about our whole system and that you really have to go out there and prove it to change the mentality about it all. And I understand that, but if I have to go and prove it, that means we’ve got a bigger problem.

Acevedo: Let me tell you, you’re a better person than me—you’re a better man than I am. If I were you, I couldn’t be sitting at this table.

Graves: I have to be at this table.

Hervey: We could never apologize to you enough for what’s happened, but hopefully you know that we’re trying to make a difference.

Graves: Yes, ma’am, I surely believe that.

Acevedo: What you need to understand is that one Anthony at a time, we build a case. Every single one that we identify is one step closer to tipping the scales of justice. We’re here right now. We’re a few more egregious cases away from people finally taking a step back and saying enough is enough.

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